By Paul Schlienz
As the hospitality industry faces a labor shortage, and the U.S. is embattled in fierce debates over immigration, the Washington Hospitality Association spoke with Davis Bae, an employment attorney at Fisher Phillips about some of the resources available to help you stay in compliance with federal immigration laws.
The U.S. Citizenship and Immigration Services (USCIS) is responsible for the administration of immigration and naturalization adjudication functions and establishing immigration policies and priorities. While many people are legally working in the U.S., businesses and business owners that have actual or constructive knowledge of a worker’s lack of employment authorization or who do not comply with I-9 Employment Eligibility Verification rules could face penalties, fines and even imprisonment.
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“The I-9 form has been around since the Immigration and Custom Reform Act in 1986,” said Bae. “What the Act said was if you have employees, it’s your responsibility to check your employees’ work authorization through Form I-9. Now if you talk to people in HR, everyone understands the responsibility, but maybe not how to execute it properly.”
The purpose of the I-9 form is to verify and document that each new employee is authorized to work in the U.S. If your I-9 forms are audited and the investigation turns up unauthorized workers on your staff, be on notice that you could very quickly, without warning, lose some of your employees.
Here are some basic tips about I-9 Forms:
- Follow the proper procedures for completing the I-9 forms for every new employee.
- Check the documents submitted by an employee carefully for forgery, changes or duplication rather than original issue, and do not accept expired documents.
- When reviewing the submitted documents, ask yourself: Does the document reasonably appear on its face to be genuine and relate to the person presenting it? You should not specify which documents employees may present as this could be considered discriminatory.
- Detailed instructions for completing an I-9 form are available at: uscis.gov/files/form/m-274.pdf.
If your business is audited and there are errors or omissions on any I-9 forms, it may be subject to fines or other penalties even if the employees whose forms contain the errors or omissions are legally authorized to work in the U.S.
“The most common mistakes I see with employers, when it comes to I-9 forms, is that they’re sloppy with I-9 protocol,” said Bae. “They’re not filling out paperwork or they’re filling out the forms sloppily. This potentially creates liability. I highly recommend training for your staff on filling out these forms. Make sure at least two people on your staff know how to fill out I-9s properly. Take storage and retention seriously and treat each I-9 form as a potential $2,000 liability.”
And don’t forget that even though the I-9 forms are fairly simple, there are many ways to potentially fill them out wrong and get in trouble.
Social Security Numbers
After you have hired a new employee, you can verify their Social Security Number (SSN) by using the online Social Security Number Verification Service (SSNVS) or Telephone Number Employer Verification service (TNEV) provided by the Social Security Administration (SSA). Information about registering for SSNVS and TNEV is available at the SSA’s website: www.ssa.gov/employer.
The Social Security Administration (SSA) will verify that the employee’s SSN matches a name/SSN combination in its database. The SSNVS and TNEV do not provide information about immigration status or work authorization and you may not request a copy of the employee’s Social Security card.
Keep in mind that if you choose to use SSNVS or TNEV, you should do so for all new employees who are hired after you put this practice into place; you should not use it selectively. If you do institute this practice and you receive a response from the SSA that the information provided about an employee does not match the information contained in the SSA’s database, you should follow the “no-match” letter process outlined below.
You may discover that the SSN provided by the employee does not match a name/SSN combination in the SSA’s records. You may learn of the discrepancy through your use of SSNVS or TNEV. If you do not use those services, you may find out later, upon receipt of a “no-match” letter from the SSA.
There are several reasons why an employee’s SSN could result in a no-match. You should not assume that an employee who triggers a no-match is not authorized to work, nor should you treat a no-match as a reason to immediately terminate, take other adverse action or re-verify an employee’s I-9 form. Taking any adverse action against an employee on the assumption that a no-match letter means the employee is not authorized to work could violate federal anti-discrimination laws.
Rather, you should review your records and respond to SSA as requested in the no-match letter. You should also inform the employee of the no-match letter, ask the employee to confirm the information reflected in your personnel records, advise the employee to contact the SSA to correct and/or update his or her SSA records, and give the employee a reasonable period to address the no-match letter. Additionally, you should follow the same procedures for all employees who trigger a no-match letter, regardless of citizenship status or national origin.
If the employee who triggers a no-match letter does not take corrective action within a reasonable time, you should give them a final warning and a specified period by which the no-match must be remedied. If the employee still fails to correct the no-match within the specified time, termination for insubordination may be warranted.
The Department of Homeland Security (DHS) offers a web-based verification system, called E-Verify, which confirms employees’ I-9 form and verifies work authorization in a matter of seconds. Although the I-9 form is mandatory, E-Verify is not, unless your business is in a state that mandates use of E-Verify (Washington does not currently require use of E-Verify.) or you are a contractor with a federal contract that contains the FAR E-Verify clause.
If you enroll in E-Verify, you must use it for all new hires—you may not use it selectively. If the E-Verify database is unable to immediately confirm a new employee’s work authorization, it will provide steps to guide the employer and employee toward resolution. More information about E-Verify is available on DHS’s website: www.dhs.gov/everify.
“E-Verify will be required nationally eventually,” predicts Bae. “If you misuse E-Verify, you can be liable. Keep in mind that a misuse of using E-Verify on existing employees can leave you liable to discrimination lawsuits.”
Bae urges hospitality employers to take immigration and employment verification seriously.
“The best thing an employer can do is really keep their eye on these issues and to train themselves for compliance.”